What the new federal policy on marijuana enforcement means for legalization efforts

Marijuana legalizationThe past decade has seen state after state legalize marijuana for medical and recreational purposes, along with the emergence of a multi-billion-dollar industry for growing and selling it. Various banks and other businesses have also been servicing the “legal” marijuana market in those states where marijuana is legal for medicinal and recreational uses.

But that flourishing industry, and the men and women who work in it, have been threatened by Attorney General Jeff Sessions’s recent decision to rescind Obama-era policies that gave several states, and the burgeoning “legal” marijuana industry, a green light to move forward with legalization.

In 2013, the Department of Justice issued a policy memorandum, often referred to as the “Cole Memo” for then-Deputy Attorney General Jim Cole, discouraging prosecutors from targeting marijuana growers and distributors in states where marijuana was legal. This allowed those states to promote commercial markets for marijuana, which could then be taxed and regulated. The federal government would keep prosecuting marijuana distributors operating through violent gangs or in states where marijuana was still illegal, but the feds would otherwise defer to the states to handle most marijuana offenses, as long as those states worked to keep locally grown marijuana from crossing into states where it remained illegal.

In rescinding these policies, Attorney General Sessions is effectively leaving it to local U.S. Attorneys to determine if, how and when they will prosecute marijuana crimes. This creates an enormous amount of uncertainty for local growers and distributors, as well as medical marijuana patients, who are now wondering whether they will be targeted by the federal government for actions that were completely in compliance with state law. Worse, their legal status could depend on where they live, and be subject to the political views and ambitions of the local U.S. Attorney. It’s certainly possible that the U.S. Attorney for the Northern District of California may feel differently about legal marijuana than the U.S. Attorney in the Southern District of California.

While it is still unclear whether, when, and how individual U.S. Attorneys will prosecute marijuana crimes in states where the drug has been legalized, there will almost certainly be a legal fight over the Attorney General’s latest actions. In addition to challenging the decision to rescind these Obama-era policies, we may even see a challenge to the federal government’s underlying authority to prohibit marijuana in states that have voted to legalize it.

In 2005, the Supreme Court declared in Gonzalez v. Raich that the federal Controlled Substances Act prohibited California residents from growing their own marijuana for medical purposes, even though California had legalized medical marijuana within the state. The Court held that federal anti-marijuana laws were constitutional under the Commerce Clause of the U.S. Constitution, which allows Congress to regulate commercial activity that crosses state lines.

Though the Supreme Court seemed to settle the issue in 2005, the Court has changed, both in personnel and in judicial philosophy. Given an increased focus on federalism and states’ rights in recent years, the stage could be set for the Court to revisit its prior decisions regarding federal drug laws.

Regardless of how this controversy is ultimately resolved, we expect a major battle over state’s rights, personal liberty, and the extent of the federal government’s power to police the possession and use of marijuana in the courts. Our firm has decades of experience in federal criminal defense, especially matters relating to allegations of drug conspiracy and money laundering relating to the cultivation and distribution of marijuana in states where it is now legal.

If you or your business is concerned about the potential for federal action on this issue, feel free to contact me personally to discuss this issue and the steps we are taking now to defend our clients engaged in this otherwise legal industry.